The document provides an overview of corporate governance and the Sarbanes-Oxley Act. It discusses the importance of corporate governance, definitions of corporate governance, the scope and constituents of corporate governance, and the background and history leading to increased focus on corporate governance. It then summarizes the key aspects and sections of the Sarbanes-Oxley Act, which was passed in 2002 in response to major corporate and accounting scandals.
Brennan, Niamh M. [2010] “A Review of Corporate Governance Research: An Irish...
Project Report on Corporate Governance
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2. Sec 802 (a) states that, “Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies or makes a false entry in any record, document or tangible object with the intent to impede, obstruct or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under Title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.
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4. The CEO an CFO will certify the financial statements and cash flow statements of the company.
5. If while preparing financial statements, the company follows a treatment that is different from that prescribed in the accounting standards, it must disclose this in the financial statements, and the management should also provide an explanation for doing so in the corporate governance report of the annual report.
6. The company will have to lay down procedures for informing the board members about the risk management and minimization procedures.
10. Disclosures in the context of related party transctions, risk management and minimization procedures, utilization of proceeds from Initial Public Offerings, inverstor education and protection;
11. CEO/CFO certification regarding the correction of the financial statement and compliance with prescribed Accounting Standards
12. Separate report on corporate Governance in the annual reports with respects to compliance of mandatory and non mandatory requirements; and
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14. Formation of a remuneration committee for determining the remuneration packages for executives directors,
20. The Board of directors of the company shall have an optimum combination of executive and non-executive directors with not less than fifty percent of the board of directors comprising of non- executive directors .
21. Where the Chairman of the Board is non- executive directors, at least one third of the Board should comprise of independent directors and in case he is an executive directors, at least half of the Board should comprise of independent directors.
22. For the purpose of sub – clause (ii) the expression ‘independent director’ shall mean a non executive director of the company who:
23. Apart from receiving director’s remuneration , does not have any material pecuniary relationships or transactions with the company, its promoters, its directors its senior management or its holding company, its subsidiaries and associated which many affects independence of the director.
24. Is not related to promoters or persons occupying managements positions at the board level or at one level below the board;
25. It not been executive or was not partner or an executive during the preceding three years, of any of the following:
26. Is not a partner or an executive or was not partner or an executive during the preceding three years, of any of the following:
27. The statutory audit firm or the internal audit firm that is associated with the company, and ;
28. The legal firm(s) and consulting firm(s) that have a material association with the company
29. Is not a material supplier, service provider or customer or a lessor or lessee of the company, which may affect independence of the directors; and
30. is not a substantial shareholder of the company i.e owning two percent or more of the block of voting shares.
31. Nominee directors appointed by an institution which has invested in or lent to the company shall be deemed to be independent directors. However if the Dr. J.J. irani Committee recommendations on the proposed new company law are accepted, then directors, nominated by financial institutions and the government will not be considered independent.
32. Non executive directors compensation and disclosures: all fees/ compensation and disclosures: all fees/ compensation , if any paid to non executive directors, including independent directors, shall be fixed by the Board of Directors and shall require previous approval of shareholders in general meeting. The shareholders’ resolution shall specify the limits for the maximum number of stock options that can be granted to non- executive directors, including independent directors, in any financial year and aggregate. However as per SEBI amendment made vide circular SEBI/ CFD/DIL/CG dated 12/1/06 sitting fees paid to non-executive directors as authorized by the Companies Act 1956, would not require the previous approval of shareholders.
34. The board shall meet at least four times a year, with a maximum time gap of three months between any two meetings. However SEBI has amended the clause 40 of the listing agreement vide circular SEBI/CFD/DIL/CG dated 12-1-06 as per which the maximum gap between two board meetings has been increased again to 4 months.
35. A director shall not be a member in more than 10 Audit and / or Shareholders grievance Committee or act as chairman of more than five Audit Shareholders Grievance committee across all companies in which he is a director. Furthermore it should e mandatory annual requirement for every director to inform the company about the committee positions he occupies in other companies and notify changes as and when they take place.
37. The Board shall lay down a code of conduct for all Board members and senior management of the company. The code of conduct shall be posted the website of the company,
38. All Board members and senior management personnel shall affirm compliance with the code on an annual basis. The Annual report of the company shall contain declaration to this effect signed by CEO.
40. Qualified and Independent Audit Committee: A qualified and independent audit committee shall be set up, giving the terms of reference subject to the following:
41. The audit committee shall have minimum three directors as members. Two thirds of the members fo audit committee shall be independent directors.
42. All members of audit committee shall be financially literate an at least one member shall have accounting or related financial management expertise.
43. The chairman of the Audit Committee shall be an independent director.
44. The chairman of the Audit Committee shall be present at annual General Meeting to answer shareholder queries;
45. The audit committee may invite such of the executives, as it considers appropriate (and particularly the head of the finance function) to the present at the meetings of the committee. The finance director, head of internal audit and representative of the statutory auditor may be present as invitees for the meeting of the audit committee;
47. Meeting of Audit Committee: the audit committee should meet at least four times in a year and not more than four months shall elapse between two meetings. The quorum shall be either tow members or one third of the members of the audit committee whichever is greater, but there should be minimum of two independent members present.
48. Powers of Audit Committee: the audit committee shall have powers:
53. Role of audit committee: the role for the audit committee shall include the following:
54. Oversight of the company’s financial reporting process and the disclosure of its financial information to ensure that the financial statement is correct, sufficient and credible.
55. Recommending to the Board, the appointment re- appointment and if required the replacement or removal of the statutory auditor and the fixation of audit fees.
56. Approval of payment too statutory auditors for any other services rendered by the statutory auditors.
57. Reviewing, with the management the quarterly and annual financial statements before submission to the board for approval with reference to Director’s Responsibility statement under section 217 (2AA)k, significant adjustments made in financial statements, compliance with listing requirements, disclosure of any related pending transaction etc.
58. Reviewing with the management performance of statutory and internal auditor and adequacy of the internal control systems.
59. Discussion with internal auditors regarding any significant findings including suspected frauds or irregularities and follow up thereon.
60. Reviewing the findings of any internal investigation by the internal auditors into matters where there is suspected fraud or irregularity or a failure of internal control system of a material nature and reporting the matter to the board.
61. Discussion with statutory auditors before the audit commence, about the nature and scope of audit as well as post- audit discussion to ascertain any area of concern.
62. To look into the reason fo substantial defaults in the payments to the depositors, debenture holders, shareholders (in case of nonpayment of declared dividends) and creditors.
63. To review the functioning of the Whistle Blower mechanism, in case the same is existing.
64. Carrying out any other function as it mentioned in the terms of reference of the Audit Committee.
66. At least one independent director on the Board of Director of the holding company shal be a director on the Board of Directors of a material non listed Indian subsidiary company.
67. The audit committee of the listed holding company shall also review the financial statements, in particular, the investment made by the unlisted subsidiary company.
68. The minutes of the Board meeting of the unlisted subsidiary company shall be placed at the Board meeting of the listed holding company, the management should periodically bring to the attention of the Board of Directors of the listed holding company, a statement of all significant transaction and arrangements entered into by the unlisted subsidiary company.
71. A statement in summary form of transactions with related parties shall be placed periodically before the audit committee.
72. Details of material individual transactions with related parties which are not in the normal course of business shall be placed before the audit committee.
73. Disclosure of Accounting Treatment: where in the preparation of financial statements, a treatment different from that prescribed in an Accounting Standard has been followed, the fact shall be disclosed in the financial statements, together with the management’s explanation as to why it believes such alternative treatment is more representative of the true and fair view of the underlying business transaction in the Corporate Governance Report.
74. Board Disclosure- Risk Management: the company shall lay down procedures to inform Board members about the risk assessment and minimization procedures.
75. Proceeds from public issues, rights issues , preferential issues etc. : When money is raised through an issue (public issues rights issues, preferential issues etc.), it shall disclose to the Audit committee, the uses/ applications of funds by major category (capital expenditure,, sales and marketing, working capital, etc.), on a quarterly and annual basis.
77. All pecuniary relationship or transactions of the non- executive directors vis-à-vis the company shall be disclosed in the Annual Report.
78. Further, certain prescribed disclosures on the remuneration of directors shall be made in the section on the corporation governance of the Annual Report;
79. The company shall disclose the number of shares and convertible instruments held by non-executive directors in the annual report.
80. Non executive directors shall be required to disclose their shareholding (both own or held by/ for other persons on a (beneficial basis) in the listed company in which they proposed to be appointed as directors, prior to their appointment. These details should be disclosed in the notice to the general meeting called for appointment of such directors.
81. Management: As part of the directors’ report or as an addition there to a Management Discussion and Analysis report, the following should form part of the Annual Report to the shareholders. This includes discussion on:
96. A board committee under the chairmanship of a non- executive director shall be formed to specifically look into the redressal of shareholder and investor complaints like transfer of shares, non receipt of declared dividends etc. this committee shall be designated as ‘Shareholders/Investors Grievance Committee’.
97. To expedite the process of share transfer, Board of the company shall delegate the power of share transfer to an officer or a committee or to the registrar and share transfer agents. There delegated authority shall attend to share transfer formalities and least once in a fortnight.
99. Through the amendment made by SEBI vide circular SEBI /CFD/DIL CG DATED 12-1-06, in Clause 49 of the Listing Agreement, certification of intedrnal controls and internalcontrol system
100. CFO/CEO would be for the purpose of financial reporting. Thus the CEO, i.e. the Managing Direcctor or Manager appointed in terms of the Companies Act, 1956 and the CFO i.e. the whole – time Finance Director or any other Person heading the finance function discharging that function shall certify to the Board that:
101. They have reviewed financial statements and the cash flow statement for the year and that to the best of their knowledge and belief:
102. These statements do not contain any materially untrue statement or omit any material fact or contain statements that might be misleading;
103. These statements together present a true and fair view of the company’s affairs and are in compliance within existing accounting standards, applicable laws and regulations.
104. There are, to the best of their knowledge and belief, no transactions entered into by the company during the year which fraudulent, illegal or violative of the company’s code of conduct.
105. They accept responsibility for establishing and maintaining internal controls and they have evaluated the effectiveness of the internal control system of the company pertaining to financial reporting and they have disclosed to the auditors and the Audit Committee, deficiencies in the design or operation of internal controls, if an, of which they are aware and the steps they have taken or propose to take to rectify these deficiencies
106. They have indicated to the auditors and the Audit Committee significant changes in internal control over financial reporting during the year, significant fraud of which they have become aware and the involvement there in if any, of the management or an employee having a significant role in the company’s internal control system over financial reporting.
108. There shall be separate section on Corporate Governance in Annual Reports of Company with a detailed compliance report on Corporate Governance. Non compliance of any mandatory requirement of this clause with reason there of and the extent to which the non- mandatory requirements have been adopted should be specifically highlighted.
109. The companies shall submit a quarterly compliance report to the stock exchange within 15 days from the close of quarter as per the format given in
110. Annexure IB. the report shall be signed either by the Compliance Officer or the Chief Executive Officer of the company.
112. The company shall obtain a certificate from either the auditor or practicing company secretaries regarding compliance of conditions of corporate governance as stipulated in this clause and annex the certificate with the directors’ report, which is sent annually to all the shareholders of the company. The same certificate shall also be sent to the Stock Exchanges along with the annual report filed by the company.
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114. As per this subsection inserted by the Companies Act, 1999 every profit and loss account and balance sheet of the company shall comply with the accounting standards. The compliance of Indian Accounting standards was made mandatory and the provisions for setting up of National Committee on accounting standards were incorporated in the Act.
116. This section was inserted by the Companies Act 1999which provides that the central government shall establish a fund called the Investor Education and protection Fund and amount credited to the fund relate to unpaid dividend, unpaid matured deposits, unpaid matured Debenture, unpaid application money received by the companies for allotment of securities and due for refund and interest accrued on above amounts.
118. Subsection (2AA)added by the Companies Act, 2000 provides that the Boards report shall also include a Director’s Responsibility statement with respect to the following matters:
119. Whether accounting standards had been followed in the preparation of annual accounts and reasons for material departures, if any;
121. Whether directors had made judgments and estimate that are reasonable prudent so as to give a true and fair view of the state of affair and profit and loss of the company;
123. Whether directors had taken proper and sufficient care for the maintenance of adequate accounting records for safeguarding the assets of the company.
127. This section of the companies Act, 2000 provides for the constitution of audit committees by every public company having a paid- up capital of Rs. 5 crores or more. Audit Committee is to consist of at least 3 directors. Two of the members of the Audit Committee shall be directors other than managing or whole time director. Recommendation of the Audit Committee on any matter related to financial management including audit report shall be binding on the Board.
131. The Companies Act, 2000 had added two new sections, viz, section a 58AA and 58AAA, for the protection of small depositors. These provisions are designed to protect depositors who have invested upto Rs. 20, 000 in a financial year in a company.
133. Registrar of Companies is to allot a Corporate Identity Number to each company registered on or after November 1, 2000 (Valid circular No.)12/2000 dated 25-10-2000)
135. This section added Companies Act, 2000 empowers SEBI to administer the provisions contained in section 44 to 48, 59 to 84, 10, 109, 110, 112, 113, 116, 117, 118, 119, 120, 121, 122, 206, 206A and 207 so far as they relate to issue and transfer ofsecurities and non payment of dividend. However, SEBI’S power in this regard is limited to listed companies.
137. Clause (g) of Section 2i7i4, added by the companies Act, 200 disqualifies a person who is already director of a public company which (a) has not filed the annual accounts and annual returns for any continuous three financial years commencing on and after the first day of April 1999; or (b) has failed or repay its deposit or interest thereon on due date or redeem its debentures on due date or pay dividend and such failure to continues for one year or more, however, the aforesaid disqualification will last for five years only.